Jon Venables and the recall to custody of indeterminate sentence prisoners

Last week, it was reported that the man previously known as Jon Venables has been recalled to custody. Venables was originally convicted of the murder of toddler James Bulger when he himself was only eleven years old. Over the years, there has been great controversy around this case, especially surrounding the fact that Venables and his co-defendant Robert Thompson were granted lifetime anonymity and given new identities. They were both released in 2001.

Offenders may be recalled to custody for breaching the terms of their licence. It is not necessary for an offence to have taken place in order for an offender to be recalled. Indeed, many offenders are recalled for things like failing to attend multiple supervision appointments - matters which do not constitute a criminal offence. Conversely, a charge and even a subsequent prosecution does not necessarily mean that an individual on licence will be recalled to custody (see the case of Broadbent in the "Key Cases" section of this website). Recall can only be justified and should only be instigated if the risk that the offender poses is no longer manageable in the community.

What is the test for recall?

Prison Service Instruction 27/2014 summarises the test for indeterminate sentence prisoners, such as Venables:

"Test for Recall for indeterminate sentence prisoners

When making a request to recall an indeterminate sentence offender on licence, there must be evidence that there is an increased risk of harm to the public before recall is agreed.  The NPS/YOT must take into account the extent that the offender’s behaviour presents an increased risk of sexual or violent harm to others, regardless of the type of index offence for which he or she was originally convicted. Recall to prison does not depend upon a prosecution and conviction for a fresh offence, nor whether or not the licensee is to be tried for an offence.  The courts have held that it is for the Secretary of State and the Parole Board to maintain a balance between the risk to the community of releasing the prisoner and the liberty of the prisoner. [6.2]"

As mentioned above therefore, the issue is of risk and risk alone. At paragraph 6.3 and 6.4 further guidance is given:

"6.3.    In some cases, the Secretary of State and the Parole Board will not be concerned with crime at all, but there may be other factors, such as behaviour associated with the index offence, or the ability of the NPS/YOT to assess and manage the level of risk in the face of breaches of licence conditions which give reasonable cause for considering the licensee to be a risk to the public.

6.4.    Where the offender displays violent/sexual behaviour which in itself represents a risk of harm to the public, the need to recall in order to protect the public is clear and unambiguous. In other cases, the behaviour may not be of a violent or sexual nature, but does present a clear causal link to the behaviour exhibited in the index offence(s).  For example, the offender may have resumed substance abuse or re-established contact with other criminal associates both of which might be identified as critical risk factors. Where a causal link has been established, consideration must be given to whether this behaviour is likely to give rise to an increased risk of sexual or violent offending.  Where it does, then invariably recall must be sought. PPCS will make the final decision as to whether the test has been met."

So whilst in this case, a further offence has been alleged, the PSI makes it clear that further criminal activity is not the sole or decisive factor in considering recall. Paragraph 10.1confirms this:

" Recall can be requested where the offender is suspected of re-offending; there need not be a criminal charge or conviction as recall is based upon an offender’s behaviour whilst on licence and not upon a further conviction.  Consideration must be given to:

•    If the suspected behaviour is similar to previous offending;
•    If the suspected behaviour reflects a pattern of entrenched offending;
•    If the suspected behaviour constitutes an increase in Risk of Serious Harm."

In the case of Venables however, it has been reported that he has been charged with various offences related to indecent images of children. He will face trial in private at an unnamed court. He was recalled to custody in November last year after he was allegedly found with images of child abuse.

The CPS stated:

“The man formerly known as Jon Venables has been charged with offences relating to indecent images of children and will appear in the crown court... In order that justice can be done, no further details are being released at this stage and the proceedings are subject to reporting restrictions.”

What will happen after Venables' trial?

If Venables is found guilty or pleads guilty for these offences, he will be sentenced. He will have to serve the sentence the court hands down, but once that sentence is over, he will not automatically be released. He will the appear before the Parole Board who will determine whether or not he should be released.

What is the test for release?

The test for the release of indeterminate sentenced prisoners, which the Parole Board must apply in deciding whether or not to direct a prisoner’s release is whether the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (section 28(6)(b) Crime (Sentences) Act 1997).

This test is commonly referred to as the “life and limb” test. It means that the prisoner must pose:

1. A danger of re-offending that would cause serious harm to the public; and
2. The level of that risk is “substantial” or “more than minimal”.

John Worboys and the Parole Board's power to release indeterminate sentence prisoners

It has been announced that the Parole Board will undergo a consultation on how its decision making process can be made more "transparent". The announcement came after widespread media and public outrage that the sex offender John Worboys is to be released from prison.

The Parole Board is an independent body which conducts risk assessments on prisoners who are eligible for release from custody, and determines whether or not they should be released.

Worboys: the index offences and sentence

Worboys was working as a black cab driver in London when he drugged, raped and sexually assaulted female passengers. He received his sentence in relation to 12 women however police fear he may have had up to 100 victims. He denied all charges. He was given a sentence of imprisonment for public protection ("IPP") with a minimum term of eight years. Although this sentence has since been abolished (meaning judges no longer pass this sentence), there are still thousands of prisoners serving this sentence. It is a type of indeterminate sentence, that is to say, it has no "fixed end date" or "Sentence Expiry Date". This sentence meant that the prisoner had to serve the specified minimum term in custody (in this case, 8 years). After serving the minimum term, the prisoner could ask the Parole Board to be released. Imposition of this sentence was reserved for offenders who were perceived to be a risk to the public but who could not be punished with a life sentence.If released, the offender would be subject to supervision in the community on licence for at least ten years. The Parole Board decided that in this case, Worboys should be released, subject to licence conditions.

Why are Parole Board hearings in private?

The legal reason why Parole Board hearings are not public is because the Board is bound by statutory rules which prevent proceedings being disclosed. In order to change this, legislative changes would be required.

The release test

The Parole Board's objective is to assess the risk a prisoner poses. In making its decision, the Board will consider a range of evidence, including reports from prison staff. It may also consider psychiatric or psychological reports, for example. The prisoner is entitled to make representations as to why he feels he should be released and how his risk could be managed in the community. As mentioned above, the Parole Board is an independent body. Its members come from a range of backgrounds, including experienced judges, psychiatrists, probation officers and lay panel members. In theory, a prisoner serving an IPP sentence could be detained in prison for the rest of his life if the Parole Board determine that he is not safe to be released.

Can a Parole Board decision be challenged?

Parole Board decisions can be challenged by way of judicial review. However, in the past, such challenges have only been made when a prisoner has been denied release. Additionally, such challenges are usually made by the prisoner himself.

Maintenance of innocence

The following is an extract from the Parole Board's Information for Victims  and relates to the issue of prisoners who maintain their innocence:

"If an offender continues to maintain their innocence, the Parole Board must assess whether their risk is still high enough that the public can only be protected by their continued imprisonment against the fact that they are unlikely to show any remorse, while they continue to deny their guilt. The Parole Board does not treat such offenders any differently or more leniently; we accept the Court’s verdict that they are guilty and assess them on the basis that they are guilty. However, denial of guilt is not a lawful reason by itself for the Board to refuse to release an offender."

What will happen next?

Worboys remains on licence and if he is found to be in breach of his licence, he may be recalled to custody. If recalled, he will remain in custody until the Parole Board deem he is once again suitable for release. In terms of the issues regarding transparency that this case has raised, the Parole Board is due to undergo a review of its procedures.